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concluding that alibi instruction which stated “if you believe the defendant's alibi” did not shift the burden of proof because it also “made clear” that the prosecution “bore the burden on each essential element of the offense”
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CIVIL ACTION NO. 05-12246-DPW.
February 5, 2007
MEMORANDUM AND ORDER
Richard Murphy filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 seeking to set aside a conviction by the Massachusetts Superior Court on two counts of first degree murder and one count of armed assault in a dwelling. His conviction was affirmed in a thorough and well-reasoned opinion by the Supreme Judicial Court of Massachusetts ("SJC"). See Commonwealth v. Murphy, 442 Mass. 485 (2004) ("SJC Opinion").
Murphy asserts seven grounds, contending that his custody is in violation of his:
(1) Sixth Amendment right to effective assistance of counsel, because his trial attorney failed to explore and assert either a defense based on mental illness or a defense of voluntary intoxication;
(2) Fifth and Fourteenth Amendment rights to due process and equal protection of the law, because the state court denied five of his motions for funds to pursue a postconviction investigation of a mental illness defense;
(3) constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966), because (a) he was subjected to custodial interrogation before being given the Miranda warnings, and (b) his waiver of Miranda rights was not voluntary due to intoxication;
(4) Sixth Amendment right to conflict-free counsel, because his counsel had previously represented one of the government's witnesses in a civil case;
(5) Fifth Amendment right to procedural due process, because the state's negligent loss of a second footprint on a piece of linoleum retrieved from the murder scene deprived him of potential exculpatory evidence;
(6) Fifth Amendment right to procedural due process, because the jury instructions given at trial improperly shifted the burden of proving an alibi to the Petitioner;
(7) Fifth, Sixth, and Fourteenth Amendment right to testify, because his trial counsel prevented him from testifying at trial.
For reasons stated below, I deny Murphy's petition.
I. Procedural Background
Murphy was indicted by an Essex County grand jury in March 1994 on two counts of murder in the first degree based upon a theory of felony murder, premeditation, and extreme atrocity or cruelty. He pled not guilty and after a trial on the merits a jury convicted him of all charges. On December 15, 1995, Judge Rouse sentenced Murphy to two consecutive terms of life imprisonment without the possibility of parole and, for the armed assault conviction, a third term of life imprisonment to run concurrently with the sentence for the first murder conviction.
All Massachusetts first-degree murder convictions are reviewed directly by the Supreme Judicial Court. See Mass. Gen. Laws ch. 278 § 33A. While his appeal was pending in the SJC, Murphy moved for a new trial, which the SJC remanded to the Superior Court. After an evidentiary hearing on Murphy's new trial motion, the trial court denied the motion. The appeal of the denial of the new trial motion was consolidated with Murphy's direct appeal.
The SJC affirmed Murphy's convictions and the denial of motion for new trial on August 19, 2004. Murphy timely filed in this court for a writ of habeas corpus.
II. Factual Background
The facts of the case as the SJC found them are described thoroughly in the SJC opinion. 442 Mass. at 486. I summarize them here.
A. The Crime and Murphy's Miranda Waiver
On or around Friday, March 4, 1994, Rose Kelley and her brother Garfield were stabbed numerous times in their Lynn, Massachusetts home. The police discovered their bodies on March 5, 1994. At the time, then thirty-year old Murphy was living with the Kelleys' next-door neighbors, William Verb, his wife Beatrice, and their children Gary and Frank (the "Verb family").
Murphy had a long history of alcohol and cocaine abuse. On March 5, the day the bodies were found, Murphy was intoxicated with beer and two half pints of peppermint schnapps. At 10 a.m. on March 6, Murphy took clonazapin to remedy his hangover.
At approximately the same time on March 6, Sergeants Elaine Gill and Dennis Marks were canvassing the Kelley neighborhood. They interviewed the Verb family and Murphy at their home and asked them to come to the police station for further questioning. Frank Verb refused to accompany the police. The Sergeants interviewed the rest of the family and Murphy at the police station that day.
Murphy and the Verb family arrived at the police station at approximately 11:15 a.m. on March 6. Sergeants Gill and Marks interviewed the Verb family first and began interviewing Murphy an hour later at 12:15 p.m. By this time, the Murphy's hangover had subsided.
During the police station interview, Murphy consented in writing to have the police take a print from the bottom of his shoes, even though Sergeant Gill advised Murphy that he was free to refuse the request. Sergeant Gill then "slowly and carefully" advised Murphy of his Miranda rights. Murphy acknowledged that he understood each right, read and signed the waiver, and agreed to speak with the police. He claims that, because he was under the influence of alcohol and drugs, neither his Miranda waiver nor his statements to the police after this point in time were voluntary.
B. Murphy's Statements to Police
Between 1 p.m. and 1:30 p.m., Murphy told police both that he had been drinking and using drugs in the days before the murders and that he had made a crack cocaine pipe from a peppermint schnapps bottle and tin foil. At 2:05 p.m., after a 15 minute water break and more questioning, Sergeant Gill told Murphy that Murphy's shoes contained blood, that they matched a print taken from the victims' house, and that the police had found a crack pipe at the scene of the crime that was similar to the one he had described making. Between 2:35 p.m. and 3:15 p.m., Murphy made "a series of incriminating statements" and signed a written version of those statements prepared by Sergeant Marks. At the time he signed this statement, Murphy had not requested food but had consumed cigarettes and several glasses of water. At 4:50 p.m., after waiting in the interrogation room while police searched the Verb family home, Murphy "volunteered a statement" about the knife he had found in the Kelley home. He signed a written version of this statement and was then arrested.
By the time of his arrest, Murphy had signed written statements admitting that (1) he had awakened in the Kelley house sometime on March 4, 1994 to see both Kelleys lying dead on the floor and blood on his hands, (2) he panicked and trashed the house to stage a burglary, (3) he found a knife on the floor in the kitchen and disposed of it in the neighbor's yard, and (4) he had a history of experiencing blackouts.
After being booked, Murphy was put in a cell at the police station. He asked for a sandwich, attempted to eat it, and promptly threw up. At 11 p.m., the police brought Murphy back into the interrogation room to watch the evening news. Police hoped that watching the news story of the murders would persuade Murphy to divulge more details of the event. Murphy made incriminating statements in response to watching the news, including an admission that no one had been with him in the Kelley house on the day of the murders.
C. Murphy's Motion to Suppress Statements Made to Police
Murphy filed a motion to suppress the statements he made after he waived his Miranda rights, asserting that because he was under the influence of alcohol and drugs he could not voluntarily waive his Miranda rights or make statements to the police.
Judge McHugh granted Murphy's motion with respect to the statements made to the police after Murphy watched the 11 p.m. news, but found that (1) Murphy's testimony at the motion to suppress hearing lacked credibility, (2) "the police were scrupulous and detailed in advising the defendant of his rights," and (3) "the defendant was well aware of his rights both from the police recitation" that day and from Murphy's previous encounters with the police. Thus, the state court concluded that Murphy's Miranda waiver and subsequent statements to the police prior to 11 p.m. were knowing and voluntary beyond a reasonable doubt.
On appeal to the SJC, Murphy argued for the first time that he was in custody during the portion of the police interview that occurred prior to when Sergeant Gill read Murphy his Miranda rights, between 12:15 and 12:45 p.m. The SJC found that based upon the findings of fact at the motion to suppress, Murphy was not in custody during this time.
D. Motion to Suppress Footprint
Police found at least two footprints at the scene of the Kelley murders. One was found on a greeting card lying on the floor of a bedroom. The other was a print on the linoleum of the kitchen. The police removed a piece of the linoleum that contained the footprint for evidence. Sergeant Gill testified at trial that the piece of linoleum, but not the greeting card, was inadvertently misplaced. Murphy does not deny that the loss of this evidence was unintentional. Instead, Murphy moved to suppress the footprint found on the greeting card because the government's negligence prevented him from proving that someone else was at the murder scene.
At an evidentiary hearing on the matter, two officers testified that the footprint on the greeting card was similar to the footprint on the linoleum. Judge Rouse, the trial judge, denied the motion to suppress because there was no evidence that the second footprint would have established a reasonable doubt as to Murphy's guilt. On appeal, Murphy argued that the denial of the motion to suppress was in violation of his due process rights under the Fifth and Fourteenth Amendments. The SJC found no due process violation.
E. Murphy's Defense
The court appointed Michael F. Natola as Murphy's defense counsel. In March 1994, the court also appointed forensic psychologist Dr. Judith F. Goldberg to examine Murphy. Goldberg found Murphy competent to stand trial but also determined that based on his psychiatric history, "there appears to be a question of criminal responsibility."
Natola then engaged two Massachusetts General Hospital psychologists, Dr. Robert Kinscherff and Dr. Ronald Schouten. Kinscherff examined Murphy and found no evidence of major mental illness or psychosis, but suggested that Murphy receive a neurological consultation "to rule out temporal lobe dysfunction." Dr. Schouten also examined Murphy and reviewed the reports of Drs. Goldberg and Kinscherff. Schouten found no evidence of a "clear cut" mental illness, but, like Kinscherff, suggested that further neurological testing might uncover organic brain damage. Natola did not request any further neurological testing.
Natola discussed with Dr. Kinscherff the possibility of pursuing a defense of insanity. Dr. Kinscherff stated that Murphy's admission that he deliberately disposed of the murder weapon would be difficult to reconcile with a claim that he lacked criminal responsibility. In other words, Kinscherff indicated that the evidence of Murphy's consciousness of guilt could contradict any argument that Murphy could not tell right from wrong as a result of brain damage.
Natola also reviewed reports by Dr. Wesley Profit, director of forensic services at Bridgewater State Hospital ("Bridgewater") where Murphy had been incarcerated, and by physician Dr. Michael Annunziata, a physician who had been hired by the state. Neither report indicated evidence that Murphy suffered from mental illness at the time of the murder or that there was any question that he lacked criminal responsibility.
Natola discussed the reports with Murphy "in great detail" and explained that two of the five psychologists had suggested further neurological testing. He informed Murphy that, based upon the psychological reports and the evidence of Murphy's consciousness of guilt, he did not have a viable defense of mental illness. Murphy responded that he was opposed to going back to Bridgewater and that he preferred incarceration at a traditional penal institution. He told Natola not to pursue a mental illness defense. Natola recommended that Murphy instead proceed on a defense of alibi and, in the alternative, "diminished capacity." Though diminished capacity is not a complete defense to murder in Massachusetts, evidence of voluntary intoxication is admissible to disprove the specific intent element of first degree murder. If successful, a defense of voluntary intoxication (or, as Murphy calls it, diminished capacity) could reduce a first degree murder conviction to second degree. Murphy agreed to pursue this strategy and, at the outset of trial, his two defenses were voluntary intoxication and alibi.
During trial, Murphy decided he did not want to proceed on any theory under which he would admit to committing the murders. In response, Natola abandoned the diminished capacity defense in open court in Murphy's presence, even though he believed that presenting the defense was Murphy's best strategy. Though he abandoned a formal defense of diminished capacity, Natola presented evidence that Murphy had been under the influence at the time of the murders and requested an instruction on voluntary intoxication. The judge instructed the jury that voluntary intoxication could negate malice on all counts.
At the motion for new trial, the trial judge, Judge Rouse, determined that Murphy was "adamantly opposed to advancing any sort of mental health defense" because he did not wish to spend time at Bridgewater, and that the abandonment of the defense was Murphy's decision.
F. Potential Conflict of Interest
Approximately a year before trial, Natola filed a motion requesting a hearing regarding potential conflict of interest. At an ex parte evidentiary hearing, Natola stated that he had represented one of the potential government witnesses, James Casello, in a prior civil matter that had settled. He also stated that Murphy had only recently told Natola that on the night of the murders James Casello had awakened Murphy when he was asleep on the victims' couch. Judge Grabau presiding over the ex parte hearing questioned Murphy, who stated that he had not mentioned Casello's role in the event sooner because he was afraid Casello would find out. Murphy stated that Casello and his friends were "very intimidating."
Judge Grabau then advised Murphy of his right to representation that is free of conflict. Murphy stated that he was comfortable with continuing to be represented by Natola. The judge concluded there was no actual conflict of interest, and Murphy agreed.
At his motion for new trial, Murphy asserted that Natola did have a conflict of interest and that Natola had failed to properly investigate Casello as a suspect. In denying the motion, Judge Rouse concluded that Natola had handled the potential conflict properly and that Murphy had knowingly agreed to continue with the representation.
G. Trial and Jury Instructions
At trial, Kim Whitten, another neighbor of the Kelleys, testified that she had seen Murphy enter the Kelley house from the front porch on March 4, 1994 at 9:30 p.m. and heard arguing coming from the house at around midnight. Sergeant Elaine Gill was first on the scene on March 5 and testified that she found, along with the victims' bodies, (1) a small bottle with a Leroux Peppermint Schnapps label with burned tinfoil on top, (2) a button with hanging thread that matched Murphy's clothing, (3) two greeting cards on the ground in Garfield Kelley's bedroom, one of which had the dust of a shoe print on the back, and (4) partial shoe prints on the linoleum near the body of Rose Kelley. Gill testified that the linoleum sample with the shoe prints that she collected were subsequently lost.
Natola presented evidence of alibi and voluntary intoxication. At the close of the arguments, Judge Rouse charged the jury with instructions that included the following:
[It is] alleged that the Commonwealth has not proven beyond a reasonable doubt that the defendant was present at the time and place of the crimes. You have to decide how much [if] anything you believe or credit the alibi given in the case. If you believe the defendant's alibi, then the Commonwealth has failed to prove his guilt beyond a reasonable doubt and you must find him not guilty. But even if you disbelieve some or all of the alibi evidence, the defendant is not automatically guilty. You still have to find, based on all the evidence, that the Commonwealth has proven his guilt beyond a reasonable doubt as I have explained it to you on the elements of the various crimes.
The Commonwealth has the burden of proving beyond a reasonable doubt that the defendant committed the offense charged and, of course, that means that he was there at the time and not somewhere else. Keep in mind that the defendant has no duty or responsibility to call any witnesses or produce any evidence on his behalf. So, the fact that this issue may have been raised in the course of trial doesn't shift any burden to him whatsoever. The defendant is not required to rebut any evidence that the Commonwealth does introduce."See 442 Mass. at 497 n. 15. On appeal, Murphy argued that this jury instruction improperly placed the burden on Murphy to prove his innocence because it included the statement "if you believe the defendant's alibi then . . . you must find him not guilty." The SJC concluded that the instruction taken as a whole did not shift the burden of proof to Murphy to prove his innocence.
Natola also requested, in Murphy's presence, an instruction for voluntary intoxication and an instruction regarding the fact that the defendant had not testified. Judge Rouse gave the jury both these instructions.
H. Alleged Denial of Right to Testify
Shortly after his conviction, Murphy wrote a letter to Judge Rouse alleging that Natola denied him the right to testify at trial. Natola submitted an affidavit in connection with the motion for new trial stating that he had "numerous conversations" with Murphy and Murphy "emphatically and repeatedly [told him] that he did not want to testify." Judge Rouse found that because Murphy had failed to raise the issue during trial and because there was evidence that Murphy had voluntarily chosen not to testify, Murphy had fabricated his accusations.
I. Motion for Funds
Murphy filed five motions for new funds for further psychological testing, one for each expert Murphy planned to hire. No action was taken on these motions until after an evidentiary hearing relating to the motion for new trial. Judge Rouse denied the motions on the grounds that G.L. ch. 261 § 27C "precludes the allowance of . . . funds" associated with a motion for new trial. See Commonwealth v. Carter, 429 Mass. 266, 269 (1999) (holding that § 27C does not authorize a judge to allow costs in connection with the presentation of a new trial motion based on a claim of ineffective assistance of counsel).
After the trial judge's decision, the SJC amended Mass R. Crim. P. 30(c)(5) to authorize the allowance of costs associated with new trial motions. Murphy filed renewed motions for funds, which Judge Rouse denied because "the defendant has not shown a likelihood that the expenditure will result in the defendant's being able to present a meritorious ground for new trial."
III. Standard of Review
Habeas relief is not available to a petitioner in custody pursuant to a state court judgment unless that judgment "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C.A. § 2254(d). Thus, a factual determination made by a State court "shall be presumed to be correct" and "the applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C.A. § 2254(e)(1).
A state court judgment is "contrary to clearly established law" if either (1) the state court applied a rule that contradicts law set forth in a Supreme Court case, or (2) the state court confronts a set of facts that is materially indistinguishable from the facts in a Supreme Court case but reach the opposite result as the Supreme Court. See Carey v. Musladin, 127 S. Ct. 649, 654 (2006); Williams v. Taylor, 529 U.S. 362 (2000). A state court judgment is an unreasonable application of clearly established law if it applies the Supreme Court's precedents to a set of facts in not merely an erroneous but an unreasonable manner. Williams, 529 U.S. at 410-11.
IV. Discussion
A. Ineffective Assistance of Counsel Claim
Murphy asserts that he was denied effective assistance of counsel because his trial attorney (1) failed to conduct further neurological testing to support a mental illness defense, and (2) failed to present a defense of alcoholic blackout or voluntary intoxication. Because the facts support a finding that Murphy was adequately represented, I will deny his petition on grounds of ineffective assistance of counsel.
Though Murphy conflates the defense of mental illness with the defense of alcoholic blackout, I treat them separately here.
Murphy states in the headings of his memorandum (but nowhere else) that the state court judgment was "based upon an unreasonable determination of facts in light of the evidence." As stated above, it is Murphy's burden to prove that the findings of the state court contradict clear and convincing evidence. Because Murphy has not provided any evidence that the state court's factual findings were erroneous, I presume that the findings are correct.
1. Lack of Mental Illness Defense
Murphy asserts that Natola did not "investigate the only realistic defense Murphy had to the charge of murder in the first degree" because he failed to conduct additional neurological testing after reviewing the psychiatrists' reports. Murphy does not dispute that his defense counsel obtained and reviewed reports of five different psychiatrists who concluded that Murphy did not suffer from a major mental illness. Two of the five suggested that further neurological testing could uncover permanent organic brain damage.
Natola's assistance was effective based upon the facts as the state court found them. In order to prevail on an ineffective assistance of counsel claim, Murphy must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that but for counsel's errors, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984). Murphy has failed to prove either prong of the Strickland test.
First, the state court found counsel decided not to present the mental health defense because Murphy stated that he did not want to spend any more time at Bridgewater. Murphy presents no evidence, let alone clear and convincing evidence, that this factual finding is incorrect. The decision to plead insanity is ultimately a decision of the client's, and it is his attorney's obligation to follow the client's wishes. Thus, counsel's decision to follow his client's orders and abandon the mental illness defense was not unreasonable.
Second, Natola's decision to forgo further neurological testing would be reasonable even without Murphy's desire to avoid return to Bridgewater. Natola extensively investigated a mental health defense by examining several psychological reports, none of which concluded that Murphy had a mental illness. It is true that Natola could have requested further neurological testing to rule out a permanent brain injury. But given the fact that Murphy had admitted to disposing of the murder weapon, Natola reasonably concluded that the evidence of consciousness of guilt contradicted any claim that Murphy was not criminally responsible for the killings.
Murphy asserts that had Natola conducted further neurological testing, Murphy would not have decided to forgo the mental illness defense. Murphy provides no evidence to support this claim, however. According to the factual findings, Murphy decided to forgo the defense because he preferred a traditional penal institution to Bridgewater, where he could end up if found not guilty by reason of insanity. Given this rationale, there is no reason to conclude that further neurological testing would have changed Murphy's decision.
Third, there is no evidence that Murphy has suffered any prejudice as a result of the lack of further neurological testing. Murphy points only to a statement by Dr. Schouten stated that further testing "could" uncover brain damage. Murphy merely speculates that an alternate decision by his counsel would have resulted in Murphy's acquittal. Furthermore, Murphy provides no evidence that further neurological testing would have counteracted the evidence that Murphy acted with consciousness of guilt immediately after the murders.
Given these facts, I cannot say that the state court has erroneously applied, let alone unreasonably applied, federal law regarding ineffective assistance of counsel to Murphy's case. Natola duly followed Murphy's wishes in not presenting a defense of insanity. Even if abiding by his client's wishes had been an unreasonable decision in this context, it is not likely that the use of the mental health defense would have changed the outcome at trial.
2. Lack of Voluntary Intoxication Defense
For similar reasons, Murphy was not denied effective assistance of counsel because his counsel failed to present a defense of voluntary intoxication. Murphy claims that Natola could have presented a defense of blackout due to alcohol as a complete defense to murder. There is no foundation in Massachusetts law, however, for that proposition. Voluntary intoxication is not a complete defense to murder. Commonwealth v. Costello, 392 Mass. 393, 404 (1984). Furthermore, Natola did attempt to present a voluntary intoxication defense before Murphy instructed him to abandon it. Murphy stated that he did not want "to proceed with a defense that would involve an admission that he committed [the murders]." During trial, Natola stated his intention to abandon the so-called diminished capacity defense in Murphy's presence. Murphy did not object. Murphy cannot in hindsight claim that his counsel was ineffective for abiding by his wishes.
Even if Natola's decision to abandon the diminished capacity defense was unreasonable, it is not likely that continuing with the defense would have produced a different outcome at trial. The trial judge gave instructions on voluntary intoxication and clearly the jury rejected that theory. Murphy does not deny these facts. Accordingly, relief will be is denied on grounds of ineffective assistance of counsel.
B. State Court's Denial of Post-Trial Funds
Murphy asserts that he was entitled to postconviction funds to hire a psychiatrist in aid of his appeal under procedural due process and the Equal Protection Clause of the Fourteenth Amendment. For the reasons below, I find that his custody is not in violation of the Equal Protection or Due Process Clauses.
1. Equal Protection
Murphy claims that the state court violated the Equal Protection Clause when it denied him postconviction funds to hire a psychiatrist. Murphy is indigent and asserts that he cannot present an adequate and effective appeal from his conviction — which, to succeed, would require him to present evidence of prejudice — without the funds necessary to hire additional psychiatrists to perform further neurological testing. I note at the outset that Murphy failed to bring an equal protection claim in state court, and thus the SJC did not address whether Murphy had a Fourteenth Amendment right to funds. Regardless, his claim has no merit. Accordingly, I will bypass exhaustion questions and deny the claim on the merits under 28 U.S.C. § 2254(b)(2).
It is true that the Equal Protection Clause requires states to appoint counsel to represent indigent defendants on their first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 105 (1985); Douglas v. People of State of Cal., 372 U.S. 353, 357 (1963). The Fourteenth Amendment also mandates that states must provide indigent defendants with free transcripts from relevant court hearings if the transcript is a prerequisite to a determination of an appeal on the merits. Griffin v. Illinois, 351 U.S. 12, 18 (1956).
Murphy cites the Equal Protection Clause, but he could presumably also have brought his claim under substantive due process guarantees. According to the Court, "due process and equal protection principles converge in the Court's analysis in these cases." Bearden v. Georgia, 461 U.S. 660, 665 (1983). As a general rule, the Court analyzes "the fairness of relations between the criminal defendant and the State under the Due Process Clause" and "the question whether the State has invidiously denied one class of defendants a substantial benefit available to another class of defendants under the Equal Protection Clause." Id.
On the other hand, the Equal Protection Clause does not require a state to provide an endless supply of funds to a defendant in aid of his appeal. As a general proposition, the Fourteenth Amendment "does not require absolute equality or precisely equal advantages," San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 24 (1973), nor does it require the State to "duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction." Ross v. Moffitt, 417 U.S. 600, 616 (1974) (holding that indigents have no constitutional right to appointed counsel for a discretionary appeal). What the Constitution does require is that the state appellate system be "free of unreasoned distinctions," Rinaldi v. Yeager, 384 U.S. 305, 310 (1966), and that indigents have an adequate opportunity to present their claims fairly within the adversary system. Ross, 417 U.S. at 612.
I conclude that Murphy has not been denied the opportunity to present an adequate and effective appeal within the state system, or been subject to unreasoned distinctions. Indeed, Murphy has already received psychiatric services beyond the reach of all but the most non-indigent clients. The state appointed two psychiatrists to evaluate Murphy during trial. Those psychiatrists found no evidence of any major mental illness, and Murphy voluntarily decided not to pursue a defense of insanity. Murphy does not claim that these experts were inadequate. Instead, he argues that the only way he can show prejudice is by hiring additional experts to contradict or supplement the conclusions of the two that the state appointed and to conduct further neurological testing. Though it is true that Murphy is required to prove prejudice to prevail on an ineffective assistance of counsel claim, "the fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required." Ross, 417 U.S. at 616. Under Murphy's rationale, the state would have to provide funds to hire psychiatrists and experts indefinitely until one of them concluded he was mentally ill. This is not the burden of the state under the Equal Protection Clause. Had the state court failed to appoint Murphy any psychiatric expert during trial, his claim for relief might have more force. Here, however, the state has already given Murphy two opportunities to be evaluated fully by a mental health specialist.
Though the equal protection clause guarantees indigent defendants the right to assistance of counsel on appeal, Murphy cites no precedent that holds the same with respect to postconviction funds for psychiatrists or other experts. Thus, he has not shown that the state court contradicted clearly established law. Furthermore, he has not shown that he has been denied the opportunity to present an adequate appeal in state court. Consequently, the state court did not unreasonably misapply Griffin and other Supreme Court cases guaranteeing assistance on appeal to indigent defendants. The equal protection claim will be denied.
2. Procedural Due Process
Murphy also claims that he was guaranteed postconviction funds to hire a psychiatrist under the principles of procedural due process. In order to prevail on a procedural due process claim, Murphy must show that there is a "probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not protected." Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Because the state already furnished Murphy with funds to hire two psychiatrists, there is no evidence that the funds to hire a third would substantially effect Murphy's chance of prevailing on appeal. Consequently, his due process claim fails.
Murphy argues that Ake v. Oklahoma, 470 U.S. 68 (1985), guarantees him postconviction funds to pursue an appeal. In Ake, the Court held that the Due Process Clause guaranteed indigent defendants the right to an appointed psychiatrist at trial. Id. at 83. Even under Ake, however, which has not been extended to the postconviction context, a defendant must make a showing that "his sanity at the time of the offense is to be a significant factor at trial." Id. The state in this case appointed two psychiatrists to aid Murphy in his defense at trial. Neither of those psychiatrists determined that Murphy had a clear-cut mental illness. Furthermore, Murphy voluntarily decided to forgo a defense based on insanity. Regardless of what further neurological testing might show, his ineffective assistance of counsel claim cannot be successful. Murphy has not made any showing that the grant of funds would affect his right on appeal, or that the denial of those funds present a "risk of erroneous deprivation" of Murphy's interests. Thus, his procedural due process claim will be denied.
C. Unlawful Custody and Involuntary Miranda Waiver
Murphy asserts that the state court misapplied Miranda v. Arizona, 384 U.S. 436 (1966), by admitting into evidence his statements made to the police before and after he waived his Miranda rights. First, he asserts that he was in custody for the half hour of interview he gave before Sergeant Gill read him his Miranda warnings. Second, he argues that his waiver was not knowing and voluntary and thus his statements after his waiver should have been suppressed.
1. Custody
Given the evidence presented at the motion to suppress hearing, the state court did not err in determining that Murphy was not in custody before Trooper Gill read Murphy his Miranda warnings. A person is in custody if a reasonable person in the defendant's situation would not have felt free to leave. See Yarborough v. Alvarado, 541 U.S. 652, 662 (2004). In this case, Murphy agreed to go to the police station. He could not have felt required to; one member of the Verb family stayed behind. Once at the police station, he was the last person to be interviewed and there is no evidence that he was locked up or kept away from the Verbs while he was waiting. During the interview, the police carefully asked his consent in taking his shoe print, indicating that his cooperation in the investigation was entirely voluntary. Based on the facts found by the trial court, a reasonable person in Murphy's position would not have believed he was in custody.
Because Murphy raised this argument for the first time on appeal to the SJC, the SJC determined that the argument had been waived. The government asserts that, as a result, Murphy's argument is procedurally defaulted. Regardless, I conclude here that Murphy's argument lacks merit.
Murphy asserts that his testimony at the motion to suppress hearing is evidence that he was in custody during that initial interview at the police station. Murphy testified at the hearing that the interviewing was aggressive and that he felt he could not leave. The state judge found that this testimony lacked credibility. But even if Murphy did feel he had no opportunity to leave, the proper inquiry is not what Murphy actually felt but what a reasonable person would have felt under similar circumstances. On this issue, there was nothing unreasonable about the state court's resolution.
2. Voluntariness of Waiver
The state court also did not err in determining that Murphy's Miranda waiver and statements to the police were knowing and voluntary. Murphy was not under the influence of alcohol when he arrived at the police station for an interview; the court found that his hangover had subsided and that he was sober while giving statements to the police. Murphy was perhaps ill from drinking and had not eaten much, but that in itself is not sufficient evidence that Murphy's statements were involuntary. Furthermore, the state court found that the police had been very careful to obtain a knowing and voluntary waiver from Murphy. The police read each of his rights aloud individually and had Murphy verbally agree and sign the waiver of his rights.
Murphy does not present evidence contradicting the state court finding of voluntariness. Instead, he questions the court's conclusion that his testimony at the motion to suppress hearing was not credible, but that his written statements at the police station were. First, it is Murphy's burden to prove that the state court has determined facts that contradict clear and convincing evidence. Second, the state court reasonably determined that his written statements to the police were more credible than his testimony at the motion to suppress hearing for a number of reasons, including (1) the written statements were taken closer in proximity to the crime, and (2) Murphy had motive to fabricate the facts after his statements were taken and he faced trial.
Murphy's claims with respect to the state's denial of his motion to suppress will be denied.
D. Conflict of Interest
Murphy asserts that he has been denied his Sixth Amendment right to assistance of counsel unimpaired by loyalties to other clients because Natola had previously represented the government witness Casello in a civil trial. See Glasser v. United States, 315 U.S. 60, 75 (1942) ("The 'assistance of counsel' guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.") Murphy's claim has no merit. To prevail on a conflict of interest claim, Murphy must prove that (1) there was an actual conflict of interest, and (2) the conflict had an adverse effect on counsel's representation of the defendant. Id. Murphy offers proof of neither.
The state court found not only that there was no actual conflict of interest in this case, but that Murphy had knowingly agreed to continue with Natola as his attorney. Murphy alleges that, regardless, he should have been able to present evidence of prejudice at the motion for new trial. This assertion, even if correct, is not relevant to whether there was an actual conflict of interest. Based on the record, I cannot find that there was evidence of an actual conflict in this case.
Murphy claims he only agreed to Natola's continued representation on the eve of trial because he believed that the "Natola would vigorously defend him." He asserts that Natola failed to pursue Casello as a suspect because of a purported conflict of interest. However, he has no evidence of the adverse affect of this alleged failure.
Murphy has not provided evidence of actual conflict of interest or a conflict that resulted in an adverse effect on his representation.
E. Loss of Evidence
Murphy asserts that the state court's failure to suppress the greeting-card footprint was a violation of Murphy's constitutional right to due process. He claims that the government's negligent loss of the linoleum footprint deprived him of exculpatory evidence.
Murphy has not provided evidence of a due process violation. The government's failure to preserve exculpatory evidence is not a due process violation unless the police acted in bad faith. See Arizona v. Youngblood, 488 U.S. 51, 57 (1988). Murphy does not assert or provide evidence that the government intentionally lost the scrap of linoleum. Moreover, he provides no basis for concluding that the evidence, if available, would have been exculpatory. See California v. Trombetta, 467 U.S. 479-489 (1984) (requiring defendant to prove that the unpreserved evidence had apparent exculpatory value before it was destroyed). Thus, his petition on this ground will be denied.
F. Jury Instructions
Murphy claims that the state court's jury instruction erroneously shifted the burden of proof of guilt to the defendant in violation of his due process rights. The jury instruction given by the state trial judge, however, explicitly placed the burden of proving guilt on the government. The fact that the instruction includes the statement, "[I]f you believe the defendant's alibi then . . . you must find him not guilty," does not shift the burden of proof to defendant on any issue. The jury instruction made clear the Commonwealth bore the burden on each essential element of the offense, including identification of Murphy as the perpetrator, beyond a reasonable doubt. Accordingly, Murphy's due process claim will be denied.
G. Denial of Right to Testify
Murphy asserts that his Fifth, Sixth, and Fourteenth Amendment rights were violated when Natola prevented him from testifying at trial, against his will. He claims that he should have been able to present evidence that he was prevented from testifying at the hearing on the motion for new trial, but that the state court denied him this opportunity.
Murphy might have intended to bring a procedural due process claim here, but he makes no explicit argument to this effect.
Murphy's claim has no merit. Although criminal defendants have a constitutional right to testify at trial, see Rock v. Arkansas, 483 U.S. 44, 51 (1987), there is no clear evidence that Murphy was denied that right. The state court read Murphy's letter stating that Natola had prevented him from testifying. The court also read an affidavit from Natola stating that it was Murphy's choice not to testify. The judge found Natola's affidavit more credible than Murphy's letter. This finding is supported by the evidence. At no time during trial did Murphy raise this issue to the trial judge. He sat in the courtroom while Natola requested a jury instruction that the defendant did not testify. Given the conflicting evidence as to whether Murphy was truly prevented from testifying, I do not find the state court's conclusion erroneous. Thus, relief will be denied on this claim.
V. Conclusion
Murphy's request for habeas corpus relief is DENIED.